Site Search Navigation

Site Navigation

Site Mobile Navigation

The Long Shadow of Citizens United

By Jesse Wegman October 8, 2013 5:39 pmOctober 8, 2013 5:39 pm

Drew Angerer/Getty ImagesIn front of the Supreme Court in Washington, D.C., on October 8, 2013.

Technically speaking, the Supreme Court’s controversial 2010 ruling in Citizens United v. Federal Election Commission was not up for reconsideration on Tuesday, when the court heard oral arguments in the first major case of its new term.

But the shadow of that earlier decision lurked as the justices attempted to get to the heart of the current case, McCutcheon v. F.E.C., which is about whether overall political-contribution limits violate the First Amendment’s guarantee of free speech. (At least some of the limits appear to be in trouble.)
In Citizens United, the court held that the First Amendment permitted unlimited campaign-related spending by corporations and labor unions, and not just individuals. The 5-member majority rejected arguments by the government and others that opening the door to a massive influx of corporate cash would lead to political corruption.

Tuesday’s case, by contrast, involved federal limits on direct contributions to candidates and party committees. Since 1976, the court has held that limits on such contributions are constitutional, but limits on outside spending are not. Shaun McCutcheon, an Alabama businessman, sued the federal government after he ran up against the limits — currently set at $123,200 — and wanted to give more.

Appearing on behalf of the Obama administration, Solicitor General Donald Verrilli argued that the overall contribution limits combat corruption, and the appearance of corruption, by preventing donors from giving huge sums of money to their preferred political candidates and parties. He told the justices that if the limits were struck down, an individual donor like Mr. McCutcheon could be solicited to give up to $3.6 million to the candidates and committees of one party in an election cycle.

And he argued that the limits did not violate the right to free speech, since Mr. McCutcheon and others already have the ability to spend all they want independently.

This was too much for Justice Antonin Scalia, who shot back, “And that does not — that does not evoke any gratitude on the part of the people? I mean, if gratitude is corruption, you know, don’t those independent expenditures evoke gratitude? It’s not that we’re stopping people from spending big money on politics.”

Mr. Verrilli was in a bind. Of course, his office had made that very point, with respect to corporations, during oral arguments in Citizens United. But that argument lost, so what was he supposed to say? It’s not wise to tell the Supreme Court it they got a three-year-old decision wrong when that decision isn’t up for discussion.

So Mr. Verrilli stuck to his talking points. Justice Scalia wasn’t satisfied, and he returned to the question a few minutes later.

It is “fanciful,” Justice Scalia suggested again, to imagine that a direct contribution to the Republican or Democratic National Committee would trigger any greater gratitude toward the donor than would the “enormous amount of money” spent by a PAC in support of a senator or congressman — that is, the precise type of spending permitted after Citizens United.

“It seems to me the latter is much more identifiable, and there is nothing in the law that excludes that,” Justice Scalia said, demonstrating a special kind of judicial chutzpah. “So apparently that’s not too much of a risk.”

If what you’re really concerned about is big money in politics, he was saying, you’re out of luck, because we’ve already said independent big spenders are okay, and politicians will know who’s giving the money either way.

If Mr. Verrilli had been free to speak his mind, he would’ve said that both scenarios are prone to corruption. But in a post-Citizens United world, accepting Justice Scalia’s comparison would have given the game away. So Mr. Verrilli again refused to take the bait.

“Well, Justice Scalia,” he said, “I’m not here to debate the question of whether the court’s jurisprudence [in Citizens United] is correct.”

Justice Elena Kagan was not so constrained, however, and may even have felt a measure of camaraderie with Mr. Verrilli. As his predecessor, she had stood before the Supreme Court four years before in Citizens United and argued unsuccessfully in defense of the independent spending ban.

With the hint of a smile, Justice Kagan leaned toward her microphone. “I suppose that if this court is having second thoughts about its rulings that independent expenditures are not corrupting, we could change that part of the law,” she said.

Laughter rippled across the courtroom, and Mr. Verrilli seemed relieved that someone had finally said what he could not.

“And far be it from me to suggest that you don’t, Your Honor,” he said.

Correction: October 9, 2013A previous version of this article incorrectly stated that Solicitor General Donald Verrilli relied on Citizens United to argue that Mr. McCutcheon could make unlimited independent expenditures as an individual. That right was available to Mr. McCutcheon under the Court's 1976 holding in Buckley v. Valeo; Citizens United extended it to corporations and labor unions.